Assigned on Briefs October 2, 2017
from the Circuit Court for Bradley County No. V-15-869
Lawrence Howard Puckett, Judge
appeal involves the termination of a father's parental
rights to his minor child. The child's physical
custodians petitioned to terminate the father's parental
rights. The trial court found that the petitioners had
established, by clear-and-convincing evidence, three grounds
for termination: (1) abandonment by an incarcerated parent,
with the parent having exhibited a wanton disregard for the
welfare of the child prior to his incarceration; (2)
incarceration with a child under age eight and a prison
sentence of ten years or more; and (3) persistence of the
conditions that led to the child's removal from the
father's home. The trial court also determined that
termination of the father's parental rights is in the
child's best interest. The father appeals the three
grounds for termination found by the trial court. The father
also appeals the trial court's finding that termination
of his parental rights is in the child's best interest.
We reverse as to the ground of persistence of conditions, but
affirm termination of the father's rights on both other
grounds. We also affirm the trial court's conclusion that
termination of the father's parental rights is in the
child's best interest.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed in Part, Affirmed in Part and Remanded
Marble, Cleveland, Tennessee, for the appellant, Zachary D.
K. Calfee, Cleveland, Tennessee, for the appellees, Jason M.
and Earon M.
Herbert H. Slattery, III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General and W. Derek
Green, Assistant Attorney General, for the
intervenor-appellee, State of Tennessee.
B. Goldin, J., delivered the opinion of the court, in which
Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J.,
B. GOLDIN, JUDGE.
AND PROCEDURAL HISTORY
("Mother") and Zachary D. ("Father, " or
"Appellant") are the biological parents of one
minor child, Kandace D. (d.o.b. June 2013) ("the
Child"). Father appeals the termination of his
parental rights to the Child.
6, 2014, the Department of Children's Services
("DCS") received a referral alleging that the Child
was being subjected to nutritional and environmental neglect.
Based upon the referral, Jillian Shaw, a DCS investigator,
visited the home of Mother and Father. Father was not
present, but Mother invited Ms. Shaw into the residence. Ms.
Shaw later testified that she observed the home to be covered
with laundry, trash, bugs, and what appeared to be dog urine.
After photographing Father's residence, Ms. Shaw learned
that the Child had been living with David W. and Marie W.,
the next-door neighbors (together, the "W.'s"),
for approximately one month. Ms. Shaw visited the W.'s
home, and observed that the Child was small for her age, and
she was showing visible signs of malnourishment, including
budding breasts and a protruding stomach. After speaking with
the W.'s and observing the Child, Ms. Shaw determined
that it was necessary to move forward with the DCS
investigation. Accordingly, Ms. Shaw arranged for Marie W.
and Mother to bring the Child to the hospital emergency room
on the next day. The Child was released from the hospital
after a one-night stay with instructions to follow up with
her regular doctor. After an appointment with her regular
doctor, the Child was admitted to the hospital for a second
stay. The Child spent four nights during this second visit;
Marie W. testified that neither Father nor Mother visited the
Child during her four-night hospital stay.
10, 2014, DCS filed a Petition in Juvenile Court to Transfer
Temporary Legal Custody to the Neighbors and for an Ex
Parte Order, asking the trial court to find the Child
dependent and neglected and to award temporary legal custody
to the W.'s. On June 10, 2014, the trial court entered a
protective custody order awarding emergency custody to the
W.'s. At the preliminary hearing on June 17, 2014, both
parents consented to the transfer of temporary legal custody
of the Child to the W.'s. The trial court then entered an
Adjudicatory Order on June 19, 2014, finding that the Child
was dependent and neglected, and awarding the W.'s
temporary legal custody. On October 31, 2014, Father pled
guilty to a multitude of felonies, and he was sentenced to
serve ten years in the Tennessee Department of Corrections.
later, the W.'s gave physical custody of the Child to
Earon M. and Jason M., the petitioners in this
case. On December 7, 2015, Earon M. and her
husband Jason M., filed a petition to terminate Father's
parental rights and for the adoption of the Child. The
petition alleged that Father had been in-and-out of prison
over the course of the Child's life, that he was
currently incarcerated with a prison sentence of ten years,
and that termination of his parental rights was in the best
interest of the Child. Specifically, the petition averred
that Father was incarcerated from May 7, 2014 through May 18,
2014, and from September 29, 2014 through August 26, 2016.
The petitioners also averred that the Child had been living
with them for several months, and that they had a strong bond
with the Child. The petition also alleged that Mother was
prepared to voluntarily surrender her parental rights, and a
"Waiver of Interest and Notice" signed by Mother
was also filed with the petition.
February 17, 2016, the trial court awarded legal custody to
Earon M. and Jason M. On October 31, 2016, Father filed a
"Motion for Visitation/ Return Custody, " which
petitioners opposed. Father's motion was denied. On
February 15, 2017, petitioners filed an amended petition to
terminate Father's parental rights and for the adoption
of the Child. The amended petition averred that Father's
rights should be terminated on the following grounds:
incarceration with a sentence of ten years or more and a
child under eight years of age at the time the sentence is
entered by the court; abandonment by willful failure to visit
or support; incarceration at the time of the filing of the
original petition and willful failure to visit or support
during the four months preceding incarceration; incarceration
at the time of the filing of the original petition with
Father having engaged in conduct prior to incarceration that
exhibited a wanton disregard for the welfare of the Child;
severe abuse; and because the Child had been removed from the
Father's home for six months by the order of a court and
the conditions leading to her removal or other conditions
that in all probability would cause the Child to be subjected
to further abuse or neglect still persisted and were unlikely
to be remedied (commonly referred to as "persistence of
March 30, 2017, a hearing was held on the petition to
terminate Father's parental rights. Mother, Father, Marie
W., David W., Ms. Shaw, and Earon M. testified. By order of
April 25, 2017, the trial court terminated Father's
parental rights on the following grounds: (1) abandonment by
an incarcerated parent with the parent having exhibited
behavior demonstrating a wanton disregard for the welfare of
the Child, prior to his incarceration; (2) Father's
sentence to serve ten years in a correctional facility which
was imposed when the Child was under the age of
eight; and (3) persistence of the conditions that
led to the Child's removal. The trial court also found by
clear-and-convincing evidence that termination of
Father's parental rights was in the Child's best
interest. Father timely appealed.
has presented several issues for our review, which we restate
as six issues, as follows:
1. Whether the trial court erred in terminating Father's
parental rights on the ground of abandonment by
incarceration, and upon a showing of evidence that Father
exhibited a wanton disregard for the welfare of the Child
prior to his incarceration.
2. Whether the trial court erred in terminating Father's
parental rights on the basis of Tennessee Code Annotated
3. Whether the trial court erred in terminating Father's
parental rights on the ground of persistence of conditions.
4. Whether the trial court erred in holding that termination
of Father's parental rights is in the best interest of
5. Whether Tennessee Code Annotated Section 36-1-113(g)(6) is
constitutional, as-applied to Father.
6. Whether the trial court committed reversible error by
permitting Ms. Shaw to testify, admitting documents from the
dependency and neglect proceedings, and admitting alleged
hearsay from the Child's medical records.
both the United States and Tennessee Constitutions, a parent
has a fundamental right to the care, custody, and control of
his or her child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). While this right is fundamental, it is not
absolute, and the right "continues without interruption
only as long as a parent has not relinquished it, abandoned
it, or engaged in conduct requiring its limitation or
termination." See In re Marr, 194 S.W.3d 490,
495 (Tenn. Ct. App. 2005) (citation omitted). The state may
interfere with parental rights only when a compelling
interest exists. Nash-Putnam, 921 S.W.2d at 174-75
(citing Santosky v. Kramer, 455 U.S. 745 (1982)).
Our termination statutes identify "those situations in
which the state's interest in the welfare of a child
justifies interference with a parent's constitutional
rights by setting forth grounds on which termination
proceedings can be brought." In re W.B., No.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL
1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn.
Code Ann. § 36-1-113(g)). A party seeking termination of
a parent's rights to his or her child must prove both the
existence of at least one of the statutory grounds for
termination and that termination is in the child's best
interest. Tenn. Code Ann. § 36-1-113(c); In re
D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
of the gravity of the consequences in termination of parental
rights cases, Tennessee courts impose a heightened standard
of proof-clear-and-convincing evidence-for the parent's
benefit. See Tenn. Code Ann. § 36-1-113(c)(1);
In re Carrington H., 483 S.W.3d 507, 522 (Tenn.
2016). The clear-and-convincing-evidence standard ensures
that the facts supporting the statutory grounds for parental
rights termination are highly probable. In re
Carrington, 483 S.W.3d at 522. Such evidence
"produces in a fact-finder's mind a firm belief or
conviction regarding the truth of the facts sought to be
established." In re M.J.B., 140 S.W.3d 643, 653
(Tenn. Ct. App. 2004).
heightened burden of proof applies to both the initial
determination of whether statutory grounds for termination
have been established and whether termination is in the best
interest of the child. Id. First, the petitioner
must establish, by clear-and-convincing evidence, at least
one of the statutory grounds for termination of the
parent's rights. See Tenn. Code Ann. §
36-1-113(c)(1); In re Angela E., 303 S.W.3d 240, 251
(Tenn. 2010). Second, the petitioner must prove, by
clear-and-convincing evidence, that termination of the
parent's rights is in the child's best interest.
Tenn. Code Ann. § 36-1-113(c)(2); In re
Carrington, 483 S.W.3d at 523 ("The best interests
analysis is separate from and subsequent to the determination
that there is clear-and-convincing evidence of grounds for
termination.") "These requirements ensure that each
parent receives the constitutionally required
'individualized determination that a parent is either
unfit or will cause substantial harm to his or her child
before the fundamental right to the care and custody of the
child can be taken away.'" See In re
Carrington, 483 S.W.3d at 523 (quoting In re
Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)).
light of the heightened standard of proof in termination of
parental rights cases, a reviewing court must also modify the
customary standard of review in Tennessee Rule of Appellate
Procedure 13(d). On appeal, we review the trial court's
findings of fact "de novo on the record, with a
presumption of correctness of the findings, unless the
preponderance of the evidence is otherwise." In re
Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R.
App. P. 13(d). We must then make our "own determination
regarding whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence,
provide clear-and-convincing evidence that supports all the
elements of the termination claim." In re Bernard
T., 319 S.W.3d 586, 596-97 (Tenn. 2010). We review the
trial court's conclusions of law de novo with no
presumption of correctness. In re J.C.D., 254 S.W.3d
432, 439 (Tenn. Ct. App. 2007).
TERMINATION OF PARENTAL RIGHTS
trial court relied on the following statutory grounds in
terminating Father's parental rights: (1) abandonment by
incarceration, with Father having exhibited a wanton
disregard for the Child's well-being prior to his
incarceration; (2) Father's confinement to a correctional
facility under a sentence of ten years when the Child was
approximately one year old; and (3) persistence of the
conditions that led to the Child's removal. Although only
one ground must be proven by clear-and-convincing evidence in
order to terminate a parent's rights, the Tennessee
Supreme Court has instructed this Court to conduct our own
review to determine whether clear-and-convincing evidence
supports each ground relied upon by the trial court. See
In re Carrington, 483 S.W.3d at 523; In re
M.L.P., 228 S.W.3d 139, 144 (Tenn. Ct. App. 2007)
("As long as one statutory ground for termination is
established by the facts in [the] case and termination is in
the best interest of the [child], the trial court's
decision will be sufficiently supported.") Accordingly,
we will review all three of the foregoing grounds relied upon
by the trial court to determine if at least one statutory
ground is established, and if so, whether
clear-and-convincing evidence supports termination of
Father's parental rights.
Grounds for Termination
Abandonment by Incarceration: Tennessee Code Annotated
first turn to review the trial court's determination that
Father abandoned the Child by engaging in conduct prior to
his incarceration that exhibited a wanton disregard for the
Child's welfare. The termination of a parent's rights
to his or her child may be initiated as a result of the
parent's abandonment of the child. Tenn. Code Ann. §
36-1-113(g)(1). "Abandonment" occurs when a parent
is incarcerated at the time a petition to terminate his or
her parental rights is filed, and the parent has
"engaged in conduct prior to incarceration that exhibits
a wanton disregard for the welfare of the
child." Tenn. Code Ann. § 36-1-102(1)(A).
"We have previously held that probation violations,
repeated incarceration, criminal behavior, substance abuse,
and the failure to provide adequate support or supervision
for a child can, alone or in combination, constitute conduct
that exhibits a wanton disregard for the welfare of a
child." In re C.T.S., 156 S.W.3d 18, 25-26
(Tenn. Ct. App. 2004). When considering whether this ground
for termination has been established, "Tennessee courts
may consider the parent's behavior throughout the
child's life, even when the child is in utero."
In re Jai'Shaundria D.L.R., No.
M2011-02484-COA-R3-PT, 2012 WL 224424, at *4 (Tenn. Ct. App.
Jun. 15, 2012). As this Court has previously explained,
"a parent's incarceration is merely 'a
triggering mechanism that allows the court to take a closer
look at the child's situation to determine whether the
parental conduct that resulted in incarceration is part of a
broader pattern of conduct that renders the parent unfit or
poses a risk of substantial harm to the child.'"
Id. (quoting In re Audrey S., 182 S.W.3d
838, 865 (Tenn. Ct. App. 2005)).
this ground, the trial court made the following findings:
On or about the 31st day of October, 2014,
[Father] pleaded guilty in three (3) separate felony cases to
a total of seven (7) felony charges. While the first of these
three (3) cases occurred prior to the Child's birth, two
(2) cases encompassing six (6) different felony charges
occurred during the Child's lifetime.
That the minor child was removed from the care of [Father] on
or about the 7th day of June, 2014, and
adjudicated dependent and neglected due to environmental and
That [Father] continued to engage in criminal activity, which
resulted in his incarceration on or about the 29th
day of September 2014, until ...